United States District Court, D. New Jersey
B. SIMANDLE U.S. DISTRICT JUDGE.
action, pro se Plaintiff Genoveva Pitts alleges that
Defendants Bayview Loan Servicing, LLC
(“Bayview”) and Phelan Hallinan Diamond &
Jones, LLP (“Phelan Hallinan”) illegally
communicated with her regarding an attempt to collect an
alleged debt in violation of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692
et seq. [Docket Item 1.] Pending before the Court
are Defendants' motion to dismiss pursuant to Federal
Rule of Procedure 12(b)(6) [Docket Item 10] and
Plaintiff's amended motion to amend the Complaint.
[Docket Item 14.] For the reasons discussed below, the Court
will grant Defendants' motion to and deny Plaintiff's
amended motion to amend. The Court finds as follows:
Factual and Procedural
January 8, 2014, Bayview filed a foreclosure action against
Plaintiff in the Superior Court of New Jersey, Chancery
Division, Salem County, under Docket No F-000581-14. [Ex. C
to Docket Item 1.] Shortly thereafter, Plaintiff filed a
voluntary petition for Chapter 7 bankruptcy with the U.S.
Bankruptcy Court for the District of New Jersey, which
automatically stayed the foreclosure proceedings. [Ex. B to
Docket Item 10.] On October 1, 2014, the Bankruptcy Court
issued a Discharge of Debtor Order, which discharged
Plaintiff of her personal liability on the mortgage and note.
[Ex. D to Docket Item 1.] The foreclosure action then resumed
until, on November 10, 2016, the Chancery Court entered final
judgment in favor of Bayview in the sum of $233, 042.42. [Ex.
E to Docket Item 1.]
July 20, 2016, Plaintiff filed the first of two federal
actions against Defendant Bayview (but not Defendant Phelan
Hallinan), alleging that Bayview violated the FDCPA on five
occasions between January 20, 2016 and May 20, 2016. See
Pitts v. Bayview, Docket No. 1:16-4501-JBS-AMD (D.N.J.
filed on July 20, 2016). Bayview filed a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6), which
Plaintiff did not oppose. The Court subsequently dismissed
Plaintiff's claims after finding she “fail[ed] to
allege adequately in what respect the communications at issue
violated any specific provision of the FDCPA.”
Pitts v. Bayview Loan Servicing Loans, LLC, 2017 WL
2311664, at *2 (D.N.J. May 25, 2017).
Plaintiff filed this second federal action on June 5, 2017,
eleven days after this Court dismissed the first
case. [Docket Item 1.] This time, Plaintiff added Phelan
Hallinan as a defendant and alleged that Defendants
improperly communicated with her on five different occasions
between October 16, 2016 and November 22, 2016. [Id.
at ¶¶ 114-207.] Plaintiff seeks statutory damages
in the amount of $22, 000, actual damages in the amount of
$223, 042.42, and fees and costs. [Id. at 22.]
Defendants again moved to dismiss the Complaint for failure
to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6). [Docket Item 10.] Plaintiff untimely filed
opposition to Defendants' motion [Docket Item 11], as
well as a motion to amend the Complaint. [Docket Item 12.]
Three weeks after Defendants filed papers in opposition to
Plaintiff's motion to amend [Docket Item 13], Plaintiff
filed an amended motion to amend. [Docket Item 14], which
Defendants again opposed. [Docket Item 17.] In light of
Plaintiff's amended motion to amend, the Honorable Karen
M. Williams dismissed Plaintiff's first motion to amend
as moot. [Docket Item 16.] Defendants' motion to dismiss
and Plaintiff's amended motion to amend are now ripe for
Standard of Review.
Federal Rule of Civil Procedure 12(b)(6), the court must
“accept all factual allegations as true, construe the
Complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the
Complaint, the plaintiff may be entitled to relief.”
Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d
Cir. 2012) (internal citations omitted). In applying this
standard to pro se pleadings and other submissions,
as here, the Court must liberally construe the well-pleaded
allegations, and draw all reasonable inferences in favor of
the pro se litigant. Higgs v. Attorney Gen. of
the U.S., 655 F.3d 333, 339 (3d Cir. 2011);
Capogrosso v. Supreme Court of N.J., 588 F.3d 180,
184 (3d Cir. 2009). Despite this liberality, however, a
pro se complaint must still “contain
sufficient factual matter, accepted as true, ” to
“state a [plausible] claim to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)); see also Marley v. Donahue, 133 F.Supp.3d
706, 714 (D.N.J. 2015) (explaining the same concept).
Because Plaintiff asserts a claim under the FDCPA, a federal
statute, the Court exercises jurisdiction over this action
pursuant to 28 U.S.C. §§ 1331 and 1337(a), as well
as 15 U.S.C. § 1692k(d).
reviewing Plaintiff's Complaint and the court documents
in the state foreclosure action, and for the reasons next
discussed, the Court finds that Plaintiff has failed to state
a cognizable cause of action for violating the FDCPA.
Accordingly, the Court will grant Defendants' motion to
dismiss. Moreover, because amending the Complaint would be
futile, the Court will deny Plaintiff's motion to amend
and the dismissal will be with prejudice.
plaintiff seeking to state a claim under the FDCPA
“must establish that (1) he or she is a
‘consumer' who is harmed by violations of the
FDCPA; (2) the ‘debt' arises out of a transaction
entered into primarily for personal, family, or household
purposes; (3) the defendant collecting the debt is a
‘debt collector'; and (4) the defendant has
violated, by act or omission, a provision of the